elisha d. graff adam c. harris kathrine a. mclendon gayle

Hearing Date: August 5, 2021 at 10:00 a.m. (ET)Objection Deadline: July 29, 2021 at 4:00 p.m. (ET)

Elisha D. Graff Adam C. Harris Kathrine A. McLendon Gayle R. Klein David R. Zylberberg Kelly Koscuiszka Jamie J. Fell Elizabeth V. Curran SIMPSON THACHER & BARTLETT LLP SCHULTE ROTH & ZABEL LLP425 Lexington Avenue 919 Third Avenue New York, NY 10017 New York, NY 10022 (212) 455-2000 Telephone (212) 756-2000 Telephone (212) 455-2502 Facsimile (212) 593-5955 Facsimile

-and-

Tyler B. Robinson Lauren W. Brazier (admitted pro hac vice) SIMPSON THACHER & BARTLETT LLPCityPoint One Ropemaker Street London EC2Y 9HU, England +44-(0)20-7275-6500 Telephone +44-(0)20-7275-6592 Facsimile

Proposed Counsel to the Debtors and Debtors in Possession

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

)In re: ) Chapter 11

)MatlinPatterson Global Opportunities Partners II L.P., et al., ) Case No. 21-11255 (DSJ)

)Debtors.1 ) (Jointly Administered)

)

NOTICE OF REVISED DEBTORS’ MOTION AND PROPOSED ORDER TO SET LIMITED BAR DATE OF SEPTEMBER 10, 2021 FOR VRG, VARIGLOG AND HJDK

LITIGATION CLAIMS

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, if any, are: MatlinPatterson Global Opportunities Partners II L.P. (8284); MatlinPatterson Global Opportunities Partners (Cayman) II L.P. (8246); MatlinPatterson Global Partners II LLC (6962); MatlinPatterson Global Advisers LLC (2931); MatlinPatterson PE Holdings LLC (6900); Volo Logistics LLC (8287); MatlinPatterson Global Opportunities Partners (SUB) II L.P. (9209). The location of the Debtors’ address is: 600 Fifth Avenue, 22nd Floor, New York, New York 10022.

21-11255-dsj Doc 59 Filed 07/22/21 Entered 07/22/21 19:12:22 Main Document Pg 1 of 68

¨2¤+,W5'6 #F«

2111255210722000000000003

Docket #0059 Date Filed: 07/22/2021

PLEASE TAKE NOTICE that on July 7, 2021 MatlinPatterson Global Opportunities Partners II

L.P., on behalf of itself and its affiliated debtors and debtors-in-possession (collectively, the “Debtors”),

filed the Debtors’ Motion to Set a Limited Bar Date of September 10, 2021 for VRG, VarigLog and HJDK

Litigation Claims [Docket No. 10] (the “Motion”), and attached thereto a proposed form of order (the

“Proposed Order”).

PLEASE TAKE FURTHER NOTICE that since the filing of the Motion and the Proposed Order,

the Debtors have amended the Motion (the “Revised Motion”) and the Proposed Order (the “Revised

Proposed Order”), to, among other things, delay the proposed bar date by one week, from September 3 to

September 10, 2021.

PLEASE TAKE FURTHER NOTICE that a blackline of the Revised Motion marked against the

Motion is attached hereto as Exhibit A.

PLEASE TAKE FURTHER NOTICE that a blackline of the Revised Proposed Order marked

against the Proposed Order is attached hereto as Exhibit B.

PLEASE TAKE FURTHER NOTICE that copies of the Motion and the Revised Motion may be

obtained from the Court’s website, https://ecf.nysb.uscourts.gov, for a nominal fee, or obtained free of

charge by accessing the website of the Debtors’ claims and noticing agent, http://www.kccllc.net/mpii.

[Remainder of page intentionally left blank]


Dated: July 22, 2021 New York, NY

SIMPSON THACHER & BARTLETT LLP

/s/ Elisha D. Graff ___________________ Elisha D. Graff Kathrine A. McLendon David R. Zylberberg Jamie J. Fell 425 Lexington Avenue New York, NY 10017 Tel: (212) 455-2000 Fax: (212) 455-2502

-and-

Tyler B. Robinson Lauren W. Brazier (admitted pro hac vice) CityPoint One Ropemaker Street London EC2Y 9HU, England Tel: +44-(0)20-7275-6500 Fax: +44-(0)20-7275-6592

Proposed Counsel to the Debtors and Debtors-in-Possession

-and-

Adam C. Harris Gayle R. Klein Kelly Koscuiszka 919 Third Avenue New York, NY 10022 Tel: (212) 756-2000 Fax: (212) 593-5955

Proposed Conflicts Counsel to the Debtors and Debtors-in-Possession


Exhibit A

Redline of Revised Motion


Hearing Date and Time: August 5, 2021 at 10:00 a.m. (prevailing Eastern Time)Objection Deadline: July 29, 2021 at 4:00 p.m. (prevailing Eastern Time)

(212) 455-2502 Facsimile

Kathrine A. McLendon

(212) 593-5955 Facsimile

Hearing Date: TBD

-and-

Gayle R. Klein

Tyler B. RobinsonLauren W. Brazier (admitted pro hac vice pending)

David R. Zylberberg


Kelly Koscuiszka

CityPointOne Ropemaker Street

Jamie J. Fell

Objection Deadline: TBD

London EC2Y 9HU, England

Elizabeth V. Curran

+44-(0)20-7275-6500 Telephone+44-(0)20-7275-6592 Facsimile


Proposed Counsel to the Debtors and Debtors in Possession

UNITED STATES BANKRUPTCY COURTSOUTHERN DISTRICT OF NEW YORK

SCHULTE ROTH & ZABEL LLP

)In re: )

425 Lexington Avenue

Chapter 11

Elisha D. Graff

919 Third Avenue

)MatlinPatterson Global Opportunities Partners II L.P., et al., )

New York, NY 10017

Case No. 21-11255 (___DSJ)

Adam C. Harris

New York, NY 10022

)Debtors.1 )

(212) 455-2000 Telephone

(Jointly AdministerationedPending)

(212) 756-2000 Telephone

)

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identificationnumber, if any, are: MatlinPatterson Global Opportunities Partners II L.P. (8284); MatlinPatterson GlobalOpportunities Partners (Cayman) II L.P. (8246); MatlinPatterson Global Partners II LLC (6962);MatlinPatterson Global Advisers LLC (2931); MatlinPatterson PE Holdings LLC (6900); Volo Logistics LLC(8287); MatlinPatterson Global Opportunities Partners (SUB) II L.P. (9209). The location of the Debtors’address is: 600 Fifth Avenue, 22nd Floor, New York, New York 10022.


2

The above-captioned debtors and debtors in possession (collectively, the “Debtors”) in

these chapter 11 cases (the “Chapter 11 Cases”) hereby submit this amended motion (the

“Motion”) pursuant to section 105(a) of Title 11 of the United States Code, 11 U.S.C. §§ 101 et

seq. (the “Bankruptcy Code”), rule 3003(c) of the Federal Rules of Bankruptcy Procedure (the

“Bankruptcy Rules”), rule 3003-1 of the Local Bankruptcy Rules for the Southern District of

New York (the “Local Rules”) and the United States Bankruptcy Court for the Southern District

of New York’s Procedural Guidelines for Filing Requests for Orders to set the Last Date for

Filing Proofs of Claims (the “Bar Date Guidelines”) for the entry an order, substantially in the

form attached hereto as Exhibit A (the “Order”), (a) establishing September 310, 2021 as the

deadline for filing proofs of claim asserting the Litigation Claims (defined below) against the

Debtors and (b) approving the form and manner of notice thereof. In support of this Motion, the

Debtors rely on the Declaration of Matthew Doheny, Chief Restructuring Officer of the Debtors,

in Support of Chapter 11 Petitions and First Day Motions in Compliance with Local Rule 1007-

2 filed concurrently herewith (the “Doheny Declaration”).1 In further support of this Motion,

the Debtors respectfully state as follows:

Amendment to Motion and Proposed Order

On July 7, 2021, the Debtors filed the Debtors’ Motion to Set Limited Bar Date of

September 3, 2021 for VRG, VarigLog and HJDK Litigation Claims [Docket No. 10] (the

“Original Motion”). At the Debtors’ “first day” hearing, the Debtors agreed to consult with

DEBTORS’ AMENDED MOTION TO SET LIMITED BAR DATE OFSEPTEMBER 310, 2021 FOR VRG, VARIGLOG AND HJDK LITIGATION CLAIMS

1 Capitalized terms used but not defined herein shall have the meaning ascribed to them in the DohenyDeclaration.


3

counsel to the litigation claimants regarding the Original Motion. Over the past two weeks, the

Debtors have spoken with counsel to VRG and VarigLog regarding the Original Motion,2 but the

parties have not yet been able to reach consensus on a Litigation Claims Bar Date and the

language of a proposed Order setting such date.

Today is the final day that the Debtors may file motions on full notice (as required by

Bankruptcy Rule 2002) for the hearing scheduled for August 5, 2021. As such, in order to

provide parties-in-interest with fulsome notice of this Motion, the Debtors are filing today this

amended Motion and proposed Order. The Debtors will to continue to work with VRG and

VarigLog to resolve objections, if any, prior to the hearing.

In response to concerns raised by VRG and VarigLog, the Debtors have modified the

relief requested in the Original Motion. Most importantly, the Debtors are delaying their

proposed Litigation Claims Bar Date by one week—from September 3 to September 10,

2021. The Debtors submit that this provides the three litigation claimants with more than

adequate time—nine weeks from the Petition Date—to prepare proofs of claim.

Further, counsel to VRG has raised concerns that by submitting a proof of claim in the

Chapter 11 Cases, VRG might waive or otherwise prejudice potential rights and defenses.

Accordingly, the Debtors have added a new provision to the proposed Order that explicitly

preserves a broad set of rights and defenses of VRG, VarigLog and HJDK.

The Debtors reiterate that, as a matter of U.S. non-bankruptcy law, none of the three

litigation claims could result in a judgment that is enforceable against the Debtors and their

assets in the United States. Accordingly, the setting of a Litigation Claims Bar Date is

2 No counsel has appeared in these Chapter 11 Cases on behalf of HJDK.


necessary to permit the Debtors to object to these claims and seek expedited disallowance under

section 502(b)(1) of the Bankruptcy Code. If, as the Debtors expect, the litigation claims are

legally unenforceable, they can be promptly adjudicated by the Court. See In re Residential

Capital, LLC, 518 B.R. 720, 731 (Bankr. S.D.N.Y. 2014) (“Federal pleading standards apply

when assessing the validity of a proof of claim.”) The Debtors wish to avoid unnecessary delay:

their goal is to distribute assets to their legitimate stakeholders—i.e., the financial institutions,

insurance companies and corporate and government pension funds that invested in the Debtors

more than a decade ago—as soon as possible.

The Motion is otherwise substantially identical to the Original Motion in all respects.

Preliminary Statement

1. By this Motion, Debtors request that the Court establish September 310, 2021 as

the bar date by which three litigation claimants must file proofs of claim, in order to permit the

Debtors to promptly object to such claims, the disallowance of which is a condition to the

effectiveness of the Debtors’ proposed Plan. All three litigations are foreign proceedings that

stem from certain of the Debtors’ historical investment activity in Brazil. Regardless of

outcome, none of them could result in a judgment that is enforceable against Debtors and their

assets in the United States, as a matter of U.S. law. Accordingly, the setting of a limited bar date

to facilitate the expedited resolution of these litigation claims in conjunction with plan

confirmation is both appropriate and efficient. Specifically, the Debtors propose that the

litigation claimants be required to file proofs of claim by September 310, 2021, which will

provide ample time for briefing by parties-in-interest prior to the adjudication of the Debtors’

objections to such claims at the confirmation hearing. This prompt bar date is appropriate

because it is necessary for the Debtors’ chapter 11 plan to be timely confirmed and become

4


5

effective. Cf. In re Garrett Motion Inc., Case No. 20-12212 (MEW) (Bankr. S.D.N.Y. Dec. 11,

2020) (requiring Honeywell to file its proof of claim prior to a general bar date in order to permit

timely estimation of Honeywell’s claim in connection with plan confirmation).23

2. By way of background to the litigation claims in issue, in 2005, Debtors

MatlinPatterson Global Opportunities Partners II L.P. and MatlinPatterson Global Opportunities

Partners (Cayman) II L.P. (the “MP Funds”) established Volo Logistics LLC (“Volo LLC”), a

Delaware Limited Liability Company, to serve as an investment vehicle for pursuing investment

opportunities in the Brazilian aviation industry. Doheny Decl. at ¶ 36.

3. Volo LLC and three Brazilian individual investors (the “Brazilian

Shareholders”) formed a subsidiary company in Brazil called Volo do Brasil S.A. (“Volo dB”).

The Brazilian Shareholders owned and controlled 80% of Volo dB’s voting stock and Volo LLC

owned the remaining 20%. Id.

4. In early 2006, Volo dB acquired Varig Logistica S.A. (“VarigLog”), a Brazilian

cargo airline. Id. at ¶ 37. Later in 2006, VarigLog and Volo dB purchased the passenger airline

business of VarigLog’s former parent company. The passenger airline business was purchased

via a Brazilian special purpose vehicle that was later renamed VRG. VRG became a subsidiary

of Volo dB. Id.

5. The following depicts the MP Funds’ investment structure in Brazil, consistent

with how U.S. private equity firms acquire, hold and capitalize foreign, portfolio-company

investments. Id.:

23 The Debtors do not anticipate establishing a general bar date for other creditors.


6

6. The MP Funds’ foray into the Brazilian aviation industry was not a successful

endeavor. The investment generated a substantial loss and has led to years of unwarranted and

meritless litigation against the MP Funds in Brazil. Indeed, the MP Funds continue to be drawn

into new and different (and unmeritorious) proceedings relating to their now historic investment

in the Brazilian aviation industry, including all-new litigations commenced during 2019 and

2020 that concern events occurring more than a decade before. Doheny Decl. at ¶ 38.

7. This Motion seeks establishment of a limited bar date that will permit the Debtors

to timely object to claims in this Chapter 11 proceeding that relate to the three ongoing

litigations arising out of the MP Funds’ historic investment in Brazil. Any judgment rendered

against the MP Funds in any of the three, foreign litigations would be untenable and

unenforceable against the MP Funds in the United States, as a matter of U.S. law.

MP Funds (DE/Cayman)

Volo LLC (Del.)

Volo dB (Brazil)

VRG (Brazil))

VarigLog (Brazil)

Individual Brazilian Shareholders

1% of shares

99% of shares

100% of shares

20% of voting shares

80% of voting shares


8. The VRG Claim: In 2011, VRG sought recognition and enforcement in New

York of a Brazilian arbitral award rendered against certain of the Debtors in an arbitration held in

São Paulo, Brazil (the “VRG Claim”). Following five years of litigation, including two trips to

the Second Circuit Court of Appeals, the U.S. courts fully and finally determined that the

Brazilian arbitral award is not enforceable in the United States against the Debtors, as a matter of

federal law and U.S. public policy, because the Brazilian arbitral tribunal never had any

jurisdiction over the Debtors.

9. VRG, unhappy with this result and only because it lost before the U.S. courts,

thereafter shopped the same unenforceable arbitral award to the courts of the Cayman Islands,

where one of the Debtors has a presence, to see if those courts would recognize it. The Cayman

trial court concluded that the award was unenforceable, under Cayman law, but a Cayman Court

of Appeal reversed. The matter is now on appeal to the Privy Council in the United Kingdom,

which sits as the court of final appeal for the Cayman Islands. If VRG should prevail in the

Cayman proceedings, however, VRG would nevertheless be obligated to seek recognition and

enforcement of the Cayman judgment in New York, where substantially all of the Debtors’

assets are located. But VRG cannot launder its hopelessly defective Brazilian arbitral award, via

the Cayman proceedings, and then come back to the U.S. to seek recognition and enforcement of

a Cayman judgment entered on the same arbitral award that the U.S. courts already refused to

recognize for lack of jurisdiction over the Debtors. The doctrine of res judicata, and core

principles of public policy and foreign-judgment enforcement law prevent such form over

substance.

10. The VarigLog Claim: Because of the ultimate failure of Debtors’ investment in

Brazil, its local indirect subsidiary, VarigLog, fell upon financial distress that ultimately led to

7


Brazilian reorganization proceedings in 2009, followed by liquidation proceedings in 2012.

Those Brazilian bankruptcy proceedings remain ongoing. In May 2020, after a decade of

bankruptcy proceedings in Brazil and only after repeatedly reporting to the Public Attorney of

São Paulo facts to the contrary, the representative of VarigLog’s estate in bankruptcy procured

VarigLog to file a lawsuit against certain of the Debtors in Brazil, claiming that they had abused

their control of VarigLog so as to cause its bankruptcy, and should be held liable in Brazil for the

entirety of VarigLog’s debts in bankruptcy. The claims now being asserted in Brazil (the

“VarigLog Claim”) are all premised on facts and events dating from more than a decade ago.

11. The claims are clearly barred by two New York-law-governed Debt Assumption

Agreements, dating from 2009, in which certain of the Debtors, as lenders to VarigLog—and in

an effort at that time to recover VarigLog’s financial position—agreed to release VarigLog from

$250 million in debt obligations it owed to them, in exchange, inter alia, for releases and

indemnifications by VarigLog broadly against any claims relating in any way to the parties’

relationship prior to December 31, 2008. The claims brought by VarigLog, for the first time in

May 2020, all fall squarely within the terms of the New-York law releases and indemnifications

contained in the Debt Assumption Agreements. They are equally precluded at this stage by the

New-York law doctrines of ratification and equitable estoppel. VarigLog has accepted and

benefited from the validity of the $250 million in debt relief afforded to it under the Debt

Assumption Agreements, such that the $250 million is not reflected as claims against the estate

in its bankruptcy. But at the same time, by bringing the Brazilian claims, VarigLog purports to

disavow the consideration it gave for that debt relief, consisting of the releases and

indemnifications. VarigLog cannot take the benefit of a New York law contract but leave behind

the concomitant burden it agreed in exchange for that benefit. In all events, any future Brazilian

8


court judgment in VarigLog’s favor and against the Debtors will be unenforceable in the United

States.

12. The HJDK Claim: While VarigLog was undergoing judicial restructuring in

Brazil, HJDK Aerospacial, Inc. (“HJDK”), a Panamanian entity controlled by German

Efromovich, made loans to VarigLog totaling approximating R$24 million (which is currently

approximately USD$ 4.6 million). HJDK also separately agreed to purchase an unrelated

Brazilian entity from certain affiliates of MatlinPatterson (the “Remora Entities”), which Mr.

Efromovich personally guaranteed.

13. HJDK defaulted on its purchase obligation and VarigLog defaulted on the

repayment of the loans. The Remora Entities obtained a judgment in New York State court

against Mr. Efromovich pursuant to the guaranty. In apparent retaliation, HJDK then sought and

obtained in Brazil, ex parte, an order piercing VarigLog’s corporate veil and holding one of the

Debtors (MP Advisers) and another MatlinPatterson entity which no longer exists (together the

“Named Defendants”), liable for the unpaid VarigLog loans. HJDK obtained the ex parte

judgment by misrepresenting to the Brazilian court that the Named Defendants had

misappropriated the R$24 million from VarigLog, based on selective excerpts from VarigLog’s

Brazilian bankruptcy proceeding. As is clear, however, from the full record before the

bankruptcy court, those funds were not taken by the Named Defendants (or any other MP entity)

but rather had been used, pursuant to the Bankruptcy Court’s order, to pay pre-petition claims.

HJDK sat on the ex parte judgment for more than five years and only served the Named

Defendants with it, via Letters Rogatory, in May 2019 (the “HJDK Claim”).

14. The Named Defendants and the MP Funds now find themselves in a costly and

lengthy legal battle in Brazil to try to undo the prejudice already done to them by HJDK on an ex

9


parte basis. As will be briefed more fully in the event that HJDK files a proof of claim before

this Court, any Brazilian judgment ultimately obtained by it against the Named Defendants or

MP Funds will be unenforceable in the United States for either of two basic reasons: (a) it will

have been rendered by a civil court without subject matter jurisdiction, because HJDK’s claim

belonged before the Brazilian bankruptcy court with jurisdiction over VarigLog’s bankruptcy;

and (b) it will have been obtained by a fraud committed on the Brazilian court ex parte and

without due process.

15. For the reasons more fully developed below, none of the VRG, VarigLog or

HJDK claims is enforceable against Debtors or their assets in the United States. All of them

would have to be brought here eventually for enforcement if—after years of further, pointless

litigation—the foreign courts ultimately entered judgment against the relevant MP Debtor

entities. And collectively the asserted amount of the claims exceeds the Debtors’ available

assets. This Court should therefore set a limited bar date to permit the Debtors to timely object

to such claims and seek their disallowance in connection with plan confirmation.

Jurisdiction and Venue

16. The United States Bankruptcy Court for the Southern District of New York (this

“Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the

Amended Standing Order of Reference from the United States District Court for the Southern

District of New York, dated January 31, 2012. This is a core proceeding within the meaning of

28 U.S.C. § 157(b)(2).

17. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

18. The statutory bases for the relief requested herein are section 105(a) of the

Bankruptcy Code, Bankruptcy Rule 3003(c), Local Rule 3003-1 and the Bar Date Guidelines.

10


Relief Requested

19. By this motion, the Debtors seek entry of an order (a) requiring VRG, VarigLog

and HJDK to file proofs of claim against the Debtors on or before September 310, 2021 (the

“Litigation Claims Bar Date”) and (b) approving the form and manner of notice of the Litigation

Claims Bar Date.

Basis for Relief

I. A BAR DATE SHOULD BE SET FOR THE VRG CLAIM

A. Factual Background

1. The Sale Of VRG And The Share Purchase And Sale Agreement

20. During 2007, VarigLog and Volo dB sold their shares in VRG to GTI S.A.

(“GTI”), a subsidiary of the Brazilian airline Gol, pursuant to a Share Purchase and Sale

Agreement, dated March 28, 2007 (the “PSA”). Doheny Decl. at ¶ 41.

21. The PSA, which included an arbitration clause, specifically identified the

“Parties” to the Agreement as VarigLog and Volo dB (the “Sellers” of the shares in VRG) and

GTI (the “Buyer”). Gol, as parent company to GTI, also signed the PSA as a guarantor of the

obligations of the Buyer. By contrast, neither Volo LLC nor either of the MP Funds or their

General Partner, MatlinPatterson Global Partners II LLC, signed the PSA or were Parties to it.

Id. at ¶ 42.

22. Pursuant to a side letter agreement dated March 28, 2007, the MP Funds (as

indirect parents of the Sellers) agreed not to compete with VRG, the airline being sold, or to

invest in any of its competitors in the Brazilian passenger airline market, for a period of three

years. Id. at ¶ 43. The side letter contained only a non-compete obligation and did not contain

any arbitration clause. Id.

11


2. A Brazilian Arbitral Award Is Rendered Against The MP Funds

23. As is commonplace in the purchase and sale of a going concern, the PSA included

a purchase price adjustment process to account for the fluctuation in VRG’s working capital

during the time between signing of the PSA and completion of the sale. Doheny Decl. at ¶ 44.

24. In 2007, after the completion of the sale of VRG to GTI, a dispute arose as to the

purchase price adjustment due under the PSA. GTI (hereinafter referred to as VRG, as it was

known between 2008 and 2016 following the merger of GTI and VRG in late 2008, during the

arbitration) referred the dispute to arbitration under the arbitration clause contained in the PSA.

Id. at ¶ 45. In so doing, it named the MP Funds as parties, even though they were not parties to

the PSA or its arbitration clause. Id.

25. Over the MP Funds’ objections that they were not parties to the PSA and never

agreed to the arbitration clause contained within it, the Brazilian arbitral tribunal appointed to

decide the purchase price adjustment dispute found that it had jurisdiction over the MP Funds.

Id. at ¶ 46. This was on the basis that the MP Funds had entered into the non-compete side

letter, even though the side letter contained no arbitration agreement and the purchase price

dispute was wholly unrelated to the side letter’s non-compete obligation. Id.

26. In its final award on the merits of the purchase price dispute, dated September

2, 2010 (the “Brazilian Arbitral Award”), the tribunal expressly rejected VRG’s claim that the

MP Funds were alter egos of the Sellers, but then held the MP Funds jointly and severally liable

with the sellers of VRG, for an amount equal to the entire purchase price adjustment obligation

of the Sellers. Id. at ¶ 47. The tribunal did so on the basis of tort liability, even though VRG as

the claimant in the arbitration never advanced any such tort claim against the MP Funds, even

though the Tribunal rejected the alter ego claim that was advanced, and even though the measure

12


of damage imposed on the MP Funds was a contractual purchase price obligation, not a tort

injury. Id. at ¶ 47.

3. The U.S. Courts Fully And Finally Determine That The BrazilianArbitral Award Is Unenforceable In The United States As A MatterOf Public Policy

27. In January 2011, VRG elected to file a petition in the Southern District of New

York to seek recognition and enforcement of the Brazilian Arbitral Award in the United States,

against the MP Funds, in accordance with the United Nations Convention on the Recognition

and Enforcement of Foreign Arbitral Awards (the “New York Convention”), which is

incorporated into U.S. law by section 207 of the Federal Arbitration Act. Doheny Decl. at ¶ 48.

28. Over the next four and a half years, the MP Funds and VRG fully litigated in the

U.S. Courts the enforceability of the Brazilian Arbitral Award against the MP Funds. This

included two substantive hearings before the U.S. District Court for the Southern District Court

of New York and two appeals to the Second Circuit Court of Appeals (collectively, the “United

States Proceedings”). Id. at ¶ 49. The MP Funds opposed enforcement in the United States of

the Brazilian Arbitration Award on three separate grounds: First, that the arbitrators had no

jurisdiction over the MP Funds in Brazil because the MP Funds, as non-parties and non-

signatories to the PSA, never agreed to the arbitration clause contained in the PSA; second, on

the basis that the tribunal’s finding of liability based on a tort claim that was never alleged or

advanced by VRG as claimant in the arbitration violated the MP Funds’ due process rights,

because they were never provided a fair or adequate opportunity to defend against the basis of

liability that was imposed only by surprise in the Tribunal’s final award; and third, that the

arbitral tribunal exceeded the scope of its authority by purporting to adjudicate a tort claim that

was never submitted to it for determination. Id.

13


29. VRG’s attempts to enforce the Brazilian Arbitral Award in the United States were

denied at every step of the way. Id. at ¶ 50. Specifically, both the District Court and the Second

Circuit, applying de novo review, ultimately concluded that the MP Funds never consented to

arbitration in Brazil, because they were intentional non-parties to the PSA and its arbitration

clause—having agreed only to the separate non-compete side letter and not to the PSA—and that

the arbitral tribunal therefore fundamentally lacked any jurisdiction over the MP Funds when

rendering its award. VRG Linhas Aereas S.A. v MatlinPatterson Global Opportunities Partners

II L.P., No. 11 Civ. 0198 (MGC) at *2, 2014 WL 4928929 (S.D.N.Y. 2014); VRG Linhas Aereas

S.A. v MatlinPatterson Global Opportunities Partners II L.P., 605 Fed.Appx. 59, 61 (2d Cir.

2015); Doheny Decl. at ¶ 50.

30. In so concluding, the U.S. Courts applied Article V(2) of the New York

Convention and found the Brazilian Arbitral Award contrary to the public policy of the United

States. VRG Linhas Aereas S.A. v MatlinPatterson Global Opportunities Partners II L.P., 717

F.3d 322, 325 (2d Cir. 2013) (citing Sarhank Grp. v Oracle Corp., 404 F.3d 657 (2d Cir. 2005));

VRG Linhas Aereas S.A. v MatlinPatterson Global Opportunities Partners II L.P., 605

Fed.Appx. 59, 61 (2d Cir. 2015). Because the District Court and Second Circuit both concluded

that the arbitrators had no jurisdiction over the MP Funds in Brazil, they did not reach the MP

Funds’ separate, due process and excess-of-authority defenses to the enforcement of the Award,

as there was no need to reach those issues in order to hold that the Award was unenforceable.

Doheny Decl. at ¶ 50.

31. VRG sought rehearing and rehearing en banc before the Second Circuit. By order

dated August 20, 2015, the Second Circuit denied the request. Id. at ¶ 51. VRG did not

thereafter seek U.S. Supreme Court review. Thus, as a matter of U.S. law, and as a result of

14


nearly five years of litigation before the federal courts in New York, the Brazilian Arbitral

Award has been fully and finally adjudicated as unenforceable in the United States because the

arbitrators had no jurisdiction over the MP Funds, as a result of which, enforcement of the

Brazilian Arbitral Award against the MP Funds in the United States is contrary to U.S. public

policy. Id. at ¶¶ 51–52.

4. VRG Seeks Enforcement Of The Same Brazilian Arbitral Award InThe Cayman Islands Only After The US Courts Fully And FinallyRefuse Enforcement Of The Award

32. On September 1, 2016, only after failing to enforce the Brazilian Arbitral Award

in the United States and one day before the Cayman limitation period for seeking enforcement of

the Brazilian Arbitral Award was to expire, VRG elected to commence proceedings in the Grand

Court of the Cayman Islands, seeking to recognize and enforce the Brazilian Arbitral Award in

the Cayman Islands. VRG’s Cayman lawsuit proceeded under the same New York Convention

treaty that the U.S. Courts had applied when refusing to enforce the Award in New York.

Doheny Decl. at ¶ 53. The MP Funds opposed enforcement of the Brazilian Arbitral Award in

the Cayman Islands on the same basic three grounds under the New York Convention that they

had raised in the U.S. Proceedings. Id.

33. The MP Funds prevailed at trial before the Cayman Grand Court, which held that

the Brazilian Arbitral Award was unenforceable in the Cayman Islands for all three of the

grounds advanced by the MP Funds: lack of arbitral jurisdiction, denial of due process (or

breach of natural justice in Cayman law terms) and breach of the scope of the issues submitted

by the parties to arbitration. Id. at ¶ 54.

34. VRG appealed to the Cayman Court of Appeal, but notably did not appeal against

the finding that the MP Funds never consented to arbitration, instead contending on appeal only

15


that the Cayman courts should be estopped from considering that question at all, because the

Brazilian courts had refused to set aside the Brazilian Arbitral Award in Brazil and, under

Cayman Islands law, the question of consent to arbitrate was a question of Brazilian law. Id. at ¶

55.

35. The Cayman Court of Appeal overturned the Grand Court’s decision, holding,

inter alia, that the Cayman Islands’ courts are estopped from considering whether the MP Funds

agreed to arbitrate by virtue of the Brazilian court decisions refusing to vacate the Brazilian

Arbitral Award in Brazil. Doheny Decl. at ¶ 56. The Cayman Court of Appeal therefore

declined to consider the issue upon which the U.S. courts had determined that the Brazilian

Arbitral Award is not enforceable in the United States: i.e., that the MP Funds never consented

to arbitrate and the arbitrators never had any jurisdiction over them. Id. The Cayman Court of

Appeal also dismissed the United States Proceedings as being “of no assistance” to it because the

question of arbitral consent and jurisdiction was “decided as a matter of US law and

jurisprudence” by the U.S. Courts, rather than Cayman law. Gol Linhas Aereas S.A. (formerly

VRG Linhas Aereas S.A.) v MatlinPatterson Global Opportunities Partners (Cayman) II LP

CICA (Civil) Appeal 12 of 2019 at ¶¶ 57–58.

36. Accordingly, the Cayman Court of Appeal decision is against the MP Funds, in

the approximate amount of USD$60 million as at the Petition Date. Id. at ¶ 32. The MP Funds

have appealed to the Judicial Committee of the Privy Council, the Cayman Islands’ court of final

appeal, which appeal remains pending. Id. at ¶ 57.

16


B. Any Final Cayman Judgment Recognizing The Brazilian Arbitral AwardWould Be Unenforceable Against The MP Funds In The United States

37. The federal courts in New York have fully and finally determined that the

Brazilian Arbitral Award is not enforceable in the United States, as a matter of U.S. law.

Acknowledging the fundamental public policy interest that the United States has in protecting

American persons engaged in foreign trade from recalcitrant foreign courts and tribunals, the

Second Circuit assessed, de novo, whether the MP Funds agreed to arbitrate, as a matter of U.S.

law standards of arbitral consent, and held that they did not, rendering the Brazilian Arbitral

Award unenforceable in the United States as a matter of public policy.

38. VRG, unsatisfied with the result of nearly five years of litigation in the United

States, seeks to circumvent that result by having instituted (one day before the limitation period

expired) proceedings to enforce the Brazilian Arbitral Award in the Cayman Islands, and then

enforce in the United States a Cayman Islands judgment based on the Brazilian Arbitral Award.

VRG could have taken steps in the Cayman Islands at any time, but chose to do so only after its

attempts to enforce the Brazilian Arbitral Award in the United States failed. VRG has now spent

over a decade pursuing enforcement of the Brazilian Arbitral Award, in one set of courts then

another.

39. Even if VRG is ultimately successful in the Cayman proceedings, as a matter of

U.S. law VRG cannot circumvent the decision of the U.S. courts rendering the Brazilian Arbitral

Award unenforceable against the MP Funds in the United States by its tactical choice to go to a

different forum to seek a judgment on the very same Brazilian Arbitral Award, only after

receiving a result in the United States that it did not like. VRG cannot somehow launder the

unenforceable Brazilian Arbitral Award, through foreign court proceedings, and re-appear in the

17


United States to seek a second bite at the same enforcement apple. For reasons that will be fully

briefed by Debtors should VRG file a proof of claim before this Court, such an outcome is

antithetical to fundamental principles of res judicata, and is barred by that doctrine. Further, it

would be contrary to U.S. public policy and in conflict with the decision already rendered by the

Second Circuit, and therefore unenforceable under New York’s foreign judgment enforcement

law.

40. VRG will undoubtedly seek to rely on a line of cases which has recognized

generally that federal law governing recognition of foreign arbitral awards does not preempt state

law governing recognition of foreign judgments. Under this line of cases it is procedurally open

to a foreign creditor to seek enforcement of a foreign arbitral award under federal law, or a

foreign judgment entered on the basis of a foreign arbitral award, under state law, or both. But

none of those cases—nor any case that Debtors could find, anywhere—has ever permitted a

foreign creditor to first come to the United States with a foreign arbitral award, have it rejected

because it was rendered without any jurisdiction, contrary to U.S. public policy, and then return

with that same foreign arbitral award, packaged as a foreign judgment, because some foreign

court somewhere else was willing to recognize it, and thereby end-run U.S. public policy by

enforcing the foreign judgment, in place of the foreign arbitral award. This is precisely what

VRG would espouse here, and it should not be allowed.

C. The Proposed September 310 Bar Date is Fair to VRG

41. As noted above, the Debtors’ litigation with VRG has lasted more than a decade.

VRG is represented by sophisticated counsel, and, as described below, will be provided notice of

the proposed Litigation Claims Bar Date and the requirement that VRG file a proof of claim

prior to September 310, 2021. The asserted amount and nature of the VRG Claims is known to

18


both VRG and the Debtors, and through prior litigation, VRG has already collected (and

submitted in other forums) the necessary supporting documentation for its proof of claim. As

such, requiring VRG to file its proof of claim by the Litigation Claims Bar Date is fair to VRG

and in the best interests of all parties-in-interest in these Chapter 11 Cases, especially since the

adjudication of the VRG Claim is a condition to the effectiveness of the Debtors’ proposed Plan.

II. A BAR DATE SHOULD BE SET FOR THE VARIGLOG CLAIM


1. Loans To VarigLog And The Debt Assumption Agreements

42. During the course of the MP Funds’ investments in the Brazilian aviation

industry, Volo LLC made loans to VarigLog, and Volo LLC along with another entity, CAT

Aérea LLC (or “CAT”, which is now a wholly-owned subsidiary of Volo LLC), made loans to

VRG. Doheny Decl. at ¶ 59. The loans made to VRG were subsequently assumed by VarigLog,

such that VarigLog held all of the debts owed to Volo LLC and CAT. Id.

43. During 2008, VarigLog experienced financial difficulty. Volo LLC and CAT

took various steps to improve VarigLog’s performance, including allowing VarigLog to assign

$250 million of the debt it owed to them to another entity and releasing VarigLog from any

further obligation to repay the loans. Id. at ¶ 60. This assignment and assumption of the loans

was carried out by two debt assumption agreements, both dated December 31, 2008 (the “Debt

Assumption Agreements”). Id. The Debt Assumption Agreements are governed by New York

law and contain a forum selection clause in favor of New York courts. Doheny Decl. at ¶ 60.

44. As VarigLog itself explained in court filings in Florida, the Debt Assumption

Agreements “essentially had the effect of converting $250,000,000 debt into equity, which

improved VarigLog’s financial condition and prospects as a going concern and enhanced its

19


ability to comply with certain Brazilian regulatory requirements.” See In re Varig Logistica S.A.

Case No. 09-15717-RAM (S.D.Fla), Chapter 15 Petition [ECF No. 1], ¶ 13 and In re Varig

Logistica S.A. Case No. 09-15717-RAM (S.D.Fla), Declaration of Foreign Representative dated

March 30, 2009 [ECF No. 4], ¶ 13.

45. In exchange for Volo LLC and CAT releasing VarigLog from its obligation to

repay $250 million in debt, VarigLog, on behalf of itself, all successors and anyone claiming by

or through it, released Volo LLC, CAT and their related and affiliated parties from all claims,

including future claims, “based in whole or in part on any act, omissions, transaction, event or

other occurrence taking place on or prior to” December 31, 2008, that in any way related to

VarigLog (the “Releases”). Doheny Decl. at ¶ 61.

46. VarigLog also agreed to indemnify the released parties from and against any

claims and losses, damages and expenses incurred by any of them as a result of claims, by any

person including VarigLog, relating to their transactions or relationship with VarigLog (the

“Indemnifications”). Id. See Debt Assumption Agreements, Exhs. C-1 and C-2 to Doheny

Decl., ¶ 4(c).

47. In entering into the Debt Assumption Agreements, VarigLog expressly

acknowledged and represented that: (i) “for good and valuable consideration” it “agreed and

intend[ed] to be legally bound” by the Debt Assumption Agreements “irrevocably and

irreversibly” (see Debt Assumption Agreements, Exhs. C-1 and C-2 to Doheny Decl., preamble);

(ii) it was authorized to enter into the Debt Assumption Agreements and to carry out the

transactions contemplated thereby, and agreed and represented that it would be bound by the

terms of the Releases and Indemnifications indefinitely (see Debt Assumption Agreements,

Exhs. C-1 and C-2 to Doheny Decl., ¶¶ 10 and 4(d)); and (iii) each “Agreement has been drafted

20


jointly by the Parties at arm’s length” and that VarigLog was “represented by its in-house

counsel in connection with the negotiation, drafting and execution of this Agreement”, that it

“had ample opportunity to consult with outside counsel” and that “its decision not to consult

with outside counsel (i) has not impaired its ability to negotiate, draft or execute this Agreement,

[and] (ii) has not affected the relative bargaining power of the Parties”. (See Debt Assumption

Agreements, Exhs. C-1 and C-2 to Doheny Decl., ¶ 11(vi)).

48. Volo LLC and CAT relied on the Releases and Indemnifications, as well as the

New York choice of law and forum, in entering into the Debt Assumption Agreements. Doheny

Decl. at ¶ 62. These provisions were a valuable part of the consideration that VarigLog provided

to Volo LLC and CAT in exchange for their releasing $250 million in debt obligations owed to

them by VarigLog. Id.

49. As a result of entering into the Debt Assumption Agreements, Volo LLC and

CAT changed their position vis-à-vis VarigLog, including by losing any recourse that they would

have had against VarigLog with respect to the $250 million in assigned debt. Id. at ¶ 63. Volo

LLC and CAT have not been repaid for those loans and, as events have transpired, they are now

disadvantaged in VarigLog’s Brazilian bankruptcy, as they have foregone combined unsecured

claims of approximately $250 million. Id.

2. Over A Decade After VarigLog Entered Bankruptcy In Brazil,VarigLog’s Trustee Seeks To Hold The MP Funds And Certain OtherMP Parties Responsible For The Entirety Of VarigLog’s CreditorObligations In Brazil

50. VarigLog’s financial situation did not improve. In 2009 it entered into judicial

restructuring proceedings in Brazil. Id. at ¶ 64. In connection with those foreign bankruptcy

proceedings, on March 31, 2009, VarigLog filed a Petition for Chapter 15 Relief and

21


Recognition of a Foreign Proceeding in the Bankruptcy Court in the Southern District of Florida.

Id.

51. In September 2012, the Brazilian reorganization was converted into a liquidation

proceeding. Id. at ¶ 65. In connection with the conversion to a liquidation proceeding,

VarigLog’s Trustee filed a report in 2013 with the public attorney’s office in São Paulo. This

report assessed the probable causes of VarigLog’s bankruptcy. A year later the Trustee filed a

second report with the public attorney confirming the first report. Both reports ascribe the causes

of the bankruptcy to, in particular, the decline in demand for the air transportation services that

VarigLog used to provide and its inability to generate positive results. Neither report suggested

in any way that any sort of misconduct by the MP Funds or their affiliates had caused VarigLog’s

bankruptcy. Id.

52. Despite this, on May 11, 2020, VarigLog filed proceedings in the 1st Bankruptcy

and Judicial Reorganization Court of the Judicial District of São Paulo against the MP Funds and

certain of the other Debtors (hereinafter the “MP Parties”) seeking to hold them responsible for

the entirety of VarigLog’s debt to creditors, totaling approximately USD$345.6 million at

today’s exchange rate (the “Brazilian Action”).

53. The Brazilian Action alleges that the MP Parties had an improper relationship

with VarigLog, breaching fiduciary duties allegedly owed and acting as its alter ego, thus causing

its bankruptcy. Id. at ¶ 67.

54. VarigLog’s Brazilian Action relies overwhelmingly on alleged facts that occurred

more than 12 years ago, prior to December 31, 2008 and prior to the two reports that VarigLog’s

Trustee filed with the public attorney attributing the causes of the bankruptcy to other factors.

22


All but one of the alleged acts/events that are the subject of the Brazilian Action occurred during

the period been January 27, 2006 and the end of August 2008. Doheny Decl. at ¶ 67.

55. By virtue of the Brazilian Action, VarigLog seeks impermissibly to enjoy the New

York-law benefits of the Debt Assumption Agreements ($250 million in debt forgiveness) for

purposes of its bankruptcy, as the forgiven debt does not now appear as creditor claims in

VarigLog’s Brazilian bankruptcy, but at the same time disavow the New York-law consideration

that VarigLog gave for that relief, consisting of the Releases and Indemnities which bar the

claims it now pursues in the Brazilian Action. Doheny Decl. at ¶ 67. Because the two legal

causes of action asserted in the Brazilian Action (that the MP Parties breached fiduciary duties

and that the corporate veils of all of the several entities within the investment structure should be

lifted) are based on fact allegations that took place prior to December 31, 2008, they are released,

waived and discharged pursuant to the terms of the Debt Assumption Agreements. Tellingly, the

Brazilian Action makes no allegations in respect of the Debt Assumption Agreements, even

though the filing of that Action necessarily presupposes that those Agreements are somehow

invalid. See In re Varig Logistica S.A., Case No. 09-15717-RAM (S.D.Fla), Notice of Filing of

Complaint Against MatlinPatteron Entities, attaching Brazilian Compliant and Translation

thereof [ECF No. 170].

3. The MP Parties’ Adversary Proceeding Before The Chapter 15Bankruptcy Court In The Southern District of Florida

56. On June 23, 2020, the MP Parties filed a complaint in the Chapter 15 proceeding

that VarigLog had commenced before the Bankruptcy Court for the Southern District of Florida,

in connection with its Brazilian bankruptcy main proceeding. The Adversary Proceeding

complaint asked the Bankruptcy Court in Miami, inter alia, to give effect to the Releases and

23


Indemnifications granted by VarigLog to the MP Parties, or alternatively, for relief from the

automatic stay emanating from VarigLog’s Chapter 15 filing, to allow the MP Parties to pursue

their claims under the New York-law governed Releases and Indemnifications in New York.

Doheny Decl. ¶ 69; See In re Varig Logistica S.A., Case No. 09-15717-RAM; Adv. Pro. No. 20-

01243-BKC-RAM-A).

57. In essence, the Adversary Proceeding sought a determination from a U.S. court as

to the existence of VarigLog’s claims under U.S. law, in the light of the Releases and

Indemnifications contained in the Debt Assumption Agreements, and specifically whether, as a

matter of U.S. law, the claims in the Brazilian Action could form a part of VarigLog’s foreign

bankruptcy estate when VarigLog was relying at the same time on those same U.S. law governed

Debt Assumption Agreements for purposes of its bankruptcy proceeding in Brazil, to be relieved

of $250 million in debt. Put simply, the MP Parties sought a determination that VarigLog was

not entitled to take half of a U.S. law contract from which it benefits as part of its estate, but

simultaneously leave the half reflecting its concomitant U.S. law obligations behind.

58. On July 27, 2020, VarigLog’s Foreign Representative in the Chapter 15 case

moved to dismiss the Debtors’ Adversary Proceeding complaint, inter alia, on the basis that the

court should afford comity to the Brazilian Action and force the MP Parties to assert the

Releases and Indemnifications, by way of defense, within the very action in Brazil that the MP

Parties were claiming breached their New York-law rights. The Foreign Representative also

raised (prematurely) various points of Brazilian law that it contended rendered the Releases

ineffective. Doheny Decl. at ¶ 70.

24


59. The Motion to Dismiss was fully briefed by the parties and the Court heard oral

argument on the motion to dismiss on October 19, 2020. A decision has not yet been issued.

Doheny Decl. at ¶ 71.

B. Any Final Judgment In Brazil Against The MP Parties Would Be Contrary To TheTerms Of The Debt Assumption Agreements And New York Law And UltimatelyUnenforceable Against The MP Parties In The United States

60. As will be fully briefed in the event that VarigLog files a proof of claim before

this Court and for purposes of disallowance, the claims being asserted against the MP Parties in

Brazil are released as a matter of New York law, under the plain terms of the Debt Assumption

Agreements, which provide for New York law and New York courts. The Releases were entered

into in connection with substantial debt forgiveness, in an attempt to resuscitate VarigLog’s

financial condition and in view of a potential bankruptcy. They were broadly worded to cover

future-arising claims, and claims by successors or by anyone claiming by or through

VarigLog—including in bankruptcy. By their terms, and as a matter of New York law governing

their construction and scope, the Releases cover the claims being asserted in the Brazilian

Action.

61. Equally, VarigLog itself indemnifies the MP Parties against the very claims it

purports to bring against them in Brazil. As a matter of New York law, the Indemnities

contained in the Debt Assumption Agreements are broadly worded, they include first-party

claims by VarigLog against the MP Parties, and by their plain terms the MP Parties are therefore

indemnified against VarigLog’s Brazilian claims—by VarigLog.

62. VarigLog cannot challenge the validity and enforceability of the Releases and

Indemnities. It has ratified the Debt Assumption Agreements by accepting the benefit of the

$250 million in debt relief it received under those Agreements, over many years and for purposes

25


of its bankruptcy. It is equally estopped by its actions from challenging the effect of the Releases

and Indemnities more than ten years after continuously relying on the validity and enforceability

of the Agreements in which they are contained.

63. More fundamentally, VarigLog cannot enjoy the $250 million in debt relief it now

does in its Brazilian bankruptcy—solely as a function of New York law and the terms of the

Debt Assumption Agreements—but at the same time, disavow and blatantly breach, as a matter

of New York law, the Releases and Indemnities it gave as consideration for that debt relief.

Regardless of whether a Brazilian court is ultimately prepared to let VarigLog get away with

such an injustice in Brazil, by rendering a judgment in its favor and against the MP Parties, no

U.S. Court should do so, or enforce a judgment to that effect which may be rendered in Brazil.

C. The Proposed September 310 Bar Date is Fair to VarigLog

64. VarigLog is represented by sophisticated counsel, and, as described below, will be

provided notice of the proposed Litigation Claims Bar Date and the requirement that VarigLog

file a proof of claim prior to September 310, 2021. Further, in connection with the Adversary

Proceeding, VarigLog has already collected the necessary supporting documentation for its proof

of claim and briefed the key questions that will be at issue in determining whether the VarigLog

Claims should be disallowed. As such, requiring VarigLog to file its proof of claim by the

Litigation Claims Bar Date is fair to VarigLog and in the best interests of all parties-in-interest in

these Chapter 11 Cases, especially since the adjudication of the VarigLog Claim is a condition to

the effectiveness of the Debtors’ proposed Plan.

26


III. A BAR DATE AND SCHEDULE SHOULD BE SET FOR THE DISALLOWANCEOF THE HJDK CLAIM


1. The HJDK Loans and Enforcement Proceedings Against VarigLog

65. From late 2009, while VarigLog was undergoing judicial restructuring in Brazil,

HJDK, a Panamanian entity controlled by German Efromovich, made loans to VarigLog totaling

approximating R$24 million (approximately USD $4.6 million at current exchange rates).

Doheny Decl. at ¶¶ 72–73. As of January 2021 the outstanding amount, accounting for inflation

and interest is R$89 million (which is currently approximately USD $17.5 million). Id. at n.15.

The Debtors were not involved in VarigLog's business at the time that HJDK loaned those funds

to VarigLog, because VarigLog had been in judicial restructuring since March 2009 and a trustee

was appointed to oversee the estate. Id.

66. VarigLog thereafter allegedly defaulted on the HJDK loans. Id. at ¶ 74. On April

28, 2011, HJDK filed enforcement proceedings against VarigLog in the São Paolo Civil Court

seeking repayment of the loans. Id. The São Paolo Civil Court granted a preliminary injunction

to freeze R$24 million in VarigLog’s accounts. The injunction was later overturned by the Court

of Appeals of São Paolo, which released the full amount of the frozen sums. Id.

67. On September 27, 2012, VarigLog was declared bankrupt, and the judicial

restructuring was converted to a liquidation proceeding. The Brazilian bankruptcy court ordered

the R$24 million be used to pay certain pre-petition claims, but not HJDK’s claims. Id. at ¶ 75.

2. HJDK’s Ex Parte Proceedings

68. Meanwhile, in 2011 the Remora Entities sued Mr. Efromovich personally, in state

court in New York, for breaching a personal guaranty that he gave in support of HJDK’s

obligations in a sale and purchase transaction with the Remora Entities. HJDK, as buyer, was

27


28

69. As thinly veiled retaliation for these developments in New York, in September

2013 HJDK then filed an ex parte request in the São Paolo Civil Court to pierce VarigLog’s

corporate veil to add MP Advisers and MatlinPatterson Global Opportunities Partners LP (which

was an entity affiliated with MatlinPatterson Fund I that no longer exists) to the Brazilian

proceedings, in order to recover its loan claims against them on an alter ego theory.34 Id. at ¶ 77.

70. Using incomplete filings from the Brazilian bankruptcy proceeding, HJDK

misrepresented to the São Paolo Civil Court that the Named Defendants misappropriated the

R$24 million that had been the subject of the prior injunction proceedings from the bankruptcy.

The complete bankruptcy record, however, makes perfectly clear that the funds had been used,

pursuant to the bankruptcy court’s order, to pay pre-petition claims. Id. at ¶ 78.

71. Neither MP Advisers nor the MP Funds was made aware of, and therefore did not

have an opportunity to appear in, the ex parte veil piercing lawsuit that HJDK had filed in the

São Paolo Civil Court. As a result, neither had an opportunity to defend itself, correct the record,

or otherwise challenge the jurisdiction of the São Paolo Civil Court. Id. at ¶ 80.

obliged to pay the purchase price to the Remora Entities, but defaulted. After HJDK defaulted,

the Remora Entities sued Mr. Efromovich personally. Between 2012 and 2014 they obtained

various decisions in their favor, including summary judgment in January 2012. Ultimately, a

New York state court judgment for approximately USD$12.8 million was entered against Mr.

Efromovich in 2014. Mr. Efromovich has not paid that judgment and it is now for USD$19

million including interest. Doheny Decl. at ¶ 76.

34 HJDK presumably had meant to name the MP Funds which indirectly held equity in VarigLog, rather than theMP Funds’ investment adviser and an entity from another fund that had nothing to do with the investment inVarigLog. Accordingly, HJDK named the wrong parties, ex parte.


72. On October 7, 2013, the São Paolo Civil Court granted HJDK judgment ex parte.

Id. at ¶ 79. Having obtained this “judgment” for HJDK in Brazil, in the New York state court

proceedings seeking to enforce the New York personal guaranty judgment, Mr. Efromovich has

subsequently claimed the ex parte HJDK judgment is an asset assigned to him, and ought to be

“set off” against the New York personal guaranty judgment held by the other MatlinPatterson

affiliated entities. Id. at ¶ 79.

73. HJDK did not serve the Named Defendants via Letters Rogatory until over five

years after the Brazilian judgment, on May 23, 2019. Id. at ¶ 80. Upon finally being served, the

Named Defendants and the MP Funds (together the “MP Respondents”) filed an interlocutory

appeal directly challenging the jurisdiction of the São Paolo Civil Court as well as a full merits

defense. Id at ¶ 80-81.

74. There are now two tracks of related litigation in which the MP Respondents seek

to undo the prejudice already achieved by HJDK ex parte: (i) appeals related to the specific

issue of the São Paolo Civil Court’s jurisdiction on the issue of veil piercing; and (ii) a full

merits defense to the veil-piercing order. Id. at ¶ 81. In response to the MP Respondents’ clear

merits defense, HJDK is now pursuing procedural arguments designed to deprive the MP

Respondents of ever having a chance to present their substantive defenses on the merits. Id. All

of the several strands of litigation between HJDK and the MP Respondents are still pending in

Brazil at this time and are expected to take many years to resolve. Id. at ¶ 83.

29


B. Any Judgment in Favor of HJDK in Brazil Will Not Be Enforceable Againstthe Debtors in the United States Because it Will Lack Subject MatterJurisdiction and Will Have Been Obtained by Fraud and with a Lack of DueProcess

75. If HJDK ultimately obtains a judgment against the MP Respondents in Brazil, it

will have to seek recognition and enforcement of that foreign judgment against the MP Funds in

the United States, where their assets are located. As will be fully briefed in the event that HJDK

files a proof of claim before this Court and for purposes of disallowance, any final Brazilian

judgment in favor of HJDK will not be unenforceable under U.S. law for either or both of two

reasons: (i) the foreign court did not have subject matter jurisdiction over the veil-piercing

claim; and (ii) the judgment will have been obtained by fraud and with a lack of due process.

1. Lack of Subject Matter Jurisdiction

76. Brazilian bankruptcy courts, similar to those of the United States, have exclusive,

ongoing jurisdiction over the debtor’s affairs under art. 76 of Law no. 11.101/2005, which

establishes the universality of the Brazilian bankruptcy court’s jurisdiction. At the time of

HJDK’s ex parte veil-piercing claim, VarigLog had already been declared bankrupt, and was

therefore subject to the exclusive jurisdiction of the Brazilian bankruptcy court. Any claims

relating to VarigLog’s obligations, including the loans owned by HJDK, were therefore subject

to the exclusive jurisdiction of the Brazilian bankruptcy court.

77. Further, given that the Brazilian bankruptcy court established and authorized the

use of the R$24 million in funds to pay pre-petition claims, HJDK’s allegations as to the misuse

of those funds also is subject to the exclusive jurisdiction of the Brazilian bankruptcy court.

This, of course, is precisely why HJDK brought the claim before the São Paolo Civil Court,

because the Bankruptcy court would have readily understood that the claim was baseless since it

30


ordered the use of the R$24 million that HJDK alleges the MP Respondents stole, to pay pre-

petition claims rather than pay back HJDK’s loan.

78. Because the São Paulo Civil Court lacks subject matter jurisdiction over the veil-

piercing claim, any judgment it may render in favor of HJDK on that claim is unenforceable in

the United States, pursuant to state law governing foreign judgment enforcement.

2. Fraud and Lack of Due Process

79. Any judgment rendered in favor of HJDK in Brazil will have been procured by a

fraud on the court and without due process. Specifically, HJDK presented evidence that it

obtained from court submissions made in VarigLog’s judicial reorganization without also

presenting the answers to those same submissions; the answers would have made it clear that the

“missing” funds were used to pay pre-petition claims, in accordance with an order of the

Bankruptcy court. Indeed, the Public Attorney’s Office, which had requested that VarigLog be

directed to explain how the money had been used was evidently satisfied with VarigLog’s

explanation because it did not conduct any further investigation into the matter. HJDK

intentionally made it appear before the São Paolo Civil Court that the R$24 million at issue was

unaccounted for and falsely suggested that the MP Respondents were responsible, when, in

reality, the Brazilian bankruptcy court had ordered the funds be used to pay pre-petition claims in

accordance with VarigLog’s plan of reorganization. Moreover, the MP Respondents did not

have the opportunity to appear and contest HJDK’s position and at this time it is not clear that

the MP Respondents will ever be given the opportunity to do so.

80. Because HJDK will have obtained any final Brazilian judgment on its veil-

piercing claim only by deliberately excluding relevant, dispositive, publicly available evidence,

and because the proceedings did not afford due process to the MP Respondents, the judgment

31


will have been obtained by fraud and without the requirements of due process of law, and cannot

be enforced in the United States under applicable state law governing foreign judgment

enforcement.

C. The Proposed September 310 Bar Date is Fair to HJDK

81. HJDK is represented by sophisticated counsel, and, as described below, will be

provided notice of the proposed Litigation Claims Bar Date and the requirement that HJDK file a

proof of claim prior to September 310, 2021. HJDK has already served the Debtors with papers

asserting the HJDK Claims and any other supporting documentation for such claims is readily

available as part of the suit brought in the Sao Paolo Civil Court. As such, requiring HJDK to

file its proof of claim by the Litigation Claims Bar Date is fair to HJDK and in the best interests

of all parties-in-interest in these Chapter 11 Cases, especially given that the adjudication of the

HJDK Claim is a condition to the effectiveness of the Debtors’ proposed Plan.

IV. PROCEDURES FOR PROVIDING NOTICE OF THE LITIGATION CLAIMSBAR DATE AND FILING PROOFS OF CLAIM

82. The Debtors propose to serve on VRG, VarigLog and HJDK: (a) notices of the

Litigation Claims Bar Date substantially in the forms attached as Exhibit 1-A, Exhibit 1-B and

Exhibit 1-C to the proposed Bar Date Order and incorporated herein by reference (the “Bar Date

Notices”) and (b) a proof of claim in the form of Official Bankruptcy Form 410 (collectively, the

“Bar Date Notice Package”).

83. While the Litigation Claims Bar Date is a limited bar date that only applies to a

handful of creditors, the Debtors’ proposed Bar Date Notice Package was nevertheless prepared

in consideration of the forms adopted by the Court pursuant to Local Rule 3003-1 and the

Guidelines, and clearly notifies the recipients that, among other things, their proofs of claim must

be filed on or before September 310, 2021—the Litigation Claims Bar Date. As soon as

32


practicable following the entry of the Order, the Debtors intend to serve the Bar Date Notice

Package by overnight delivery and electronic service, to:

the Office of the United States Trustee for the Southern District of NewYork (the “U.S. Trustee”);

each of VRG, VarigLog, and HJDK and their respective counsel; and

such additional persons and entities as deemed appropriate by the Debtors.

84. Each proof of claim must: (a) be written in English; (b) include a claim amount

denominated in United States dollars; (c) include supporting documentation or an explanation as

to why such documentation is not available; (d) conform substantially with Official Bankruptcy

Form No. 410; and (e) be signed by the claimant or the claimant’s authorized agent.

85. A signed original of each completed proof of claim, together with any

accompanying documentation required hereunder or by Bankruptcy Rules 3001(c) and 3001(d)

must be delivered so as to be received no later than the Litigation Claims Bar Date. The Debtors

propose that claimants be required to submit proofs of claim electronically on the Case

Management / Electronic Case Filing system for the United States Bankruptcy Court for the

Southern District of New York (the “ECF System”) on the case docket for each applicable

Debtor.

86. In addition, copies of each completed proof of claim must be delivered by e-mail

to the following recipients at Simpson Thacher & Bartlett LLP, counsel to the Debtors, no later

than the Litigation Claims Bar Date:

Elisha D. Graff ([email protected])Tyler B. Robinson ([email protected])David R. Zylberberg ([email protected])Lauren W. Brazier ([email protected])

33


Proofs of claim asserting HJDK Claims must also be delivered by e-mail to the following

recipients at Schulte Roth & Zabel LLP, conflicts counsel to the Debtors, no later than the

Litigation Claims Bar Date:

Adam Harris ([email protected])Gayle Klein ([email protected])Kelly Koscuiszka ([email protected])

Reservation of Rights

87. Nothing herein shall be construed as or deemed a waiver of any of Debtors’ rights

or remedies, whether at law or in equity or otherwise, all of which are expressly reserved.

Notice

88. Notice of this Motion has been provided to: (i) the U.S. Trustee; (ii) the Securities

and Exchange Commission; (iii) the Internal Revenue Service; (iv) the United States Attorney’s

Office for the Southern District of New York; (v) the New York State Attorney General; (vi)

counsel to VRG Linhas Aereas S.A. (n/k/a Gol Linhas); (vii) counsel to Varig Logistica S.A.;

(viii) counsel to HJDK Aeroespacial S/A; (ix) any party that has requested notice pursuant to

Bankruptcy Rule 2002; and (x) all entities believed to have or be claiming an interest in the

subject matter of the Order or who, it is believed, otherwise would be affected by the Order. The

Debtors submit that, in light of the nature of the relief requested, no other or further notice need

be provided.

No Prior Request

89. No prior request for the relief sought in this Motion has been made to this or any

other court.

[Remainder of page intentionally left blank]

34


Dated: July 622, 2021New York, NY


/s/ Elisha D. Graff ___________________Elisha D. GraffKathrine A. McLendonDavid R. ZylberbergJamie J. Fell425 Lexington AvenueNew York, NY 10017Tel: (212) 455-2000Fax: (212) 455-2502

-and-

Tyler B. RobinsonLauren W. Brazier (admitted pro hac vicepending)CityPointOne Ropemaker StreetLondon EC2Y 9HU, EnglandTel: +44-(0)20-7275-6500Fax: +44-(0)20-7275-6592


-and-

Adam C. HarrisGayle R. KleinKelly Koscuiszka919 Third AvenueNew York, NY 10022Tel: (212) 756-2000Fax: (212) 593-5955

Proposed Conflicts Counsel to the Debtors andDebtors-in-Possession

WHEREFORE, the Debtors respectfully request entry of the Order, substantially in the

form attached hereto as Exhibit A, granting the relief requested herein and granting such other

relief as is just and proper.


36Delete

Style name: STB Option 1

21Move From 0Move To

Intelligent Table Comparison: Active

0Table Insert 3Table Delete

Original filename: C:\Users\17073\Documents\MatlinPatterson\MP - Bar DateMotion Filing\MP - Motion to Set Limited Bar Date (Original Filing Version -Motion).DOCX

3Table moves to 0Table moves from

Modified filename: C:\Users\17073\Documents\MatlinPatterson\MP - Bar DateMotion Filing\MP - Amended Motion to Set Limited Bar Date (RevisedMotion).DOCX

0Embedded Graphics (Visio, ChemDraw, Images etc.) 0

Summary report:Litera® Change-Pro for Word 10.8.2.10 Document comparison done on

7/22/2021 6:06:51 PM

Embedded Excel

Changes:

0Format changes 0Total Changes:

Add

63


Exhibit B

Redline of Revised Proposed Order


)

)


MatlinPatterson Global Opportunities Partners II L.P., etal.,

) Case No. 21-11255 (___DSJ)

)

In re:

Debtors.1

)

) (Jointly Administered)

Chapter 11

)

ORDER (I) ESTABLISHING A DEADLINE FOR THE FILING PROOFS OF CLAIMASSERTING THE LITIGATION CLAIMS AGAINST THE DEBTORS AND

(II) APPROVING THE FORM AND MANNER OF NOTICE THEREOF

Upon consideration of the motion (the “Motion”)2 of the above-captioned debtors and

debtors in possession (collectively, the “Debtors”) in these chapter 11 cases (the “Chapter 11

Cases”) for entry of an order (this “Order”), (i) establishing a deadline for the filing of proofs of

claim asserting the Litigation Claims against the Debtors, and (ii) approving the form and

manner of notice thereof, pursuant to section 105(a) of the Bankruptcy Code, rule 3003(c) of the

Bankruptcy Rules, rule 3003-1 of the Local Rules and the Bar Date Guidelines, all as more fully

set forth in the Motion; and upon the Doheny Declaration submitted in support of the Motion;

and the Motion having complied with Local Rule 9013-1; and due and proper notice of the

Motion having been given; and it appearing that no other or further notice of the Motion is

required; and it appearing that the Court has jurisdiction to consider the Motion in accordance


2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.


with 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United

States District Court for the Southern District of New York, dated January 31, 2012; and it

appearing that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and the Court may

enter this Order consistent with Article III of the United States Constitution; and it appearing that

venue of this proceeding and the Motion is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and

the Court having reviewed the Motion and having heard the statements in support of the relief

requested therein at a hearing before this Court (the “Hearing”); and this Court having

determined that the legal and factual bases set forth in the Motion and at the Hearing establish

just cause for the relief granted herein; and this Court having found that the relief requested in

the Motion is in the best interests of the Debtors’ estates, their creditors, and other parties in

interest; and after due deliberation and sufficient cause appearing therefor; it is HEREBY

ORDERED THAT:

1. VRG, VarigLog and HJDK each shall file proofs of claim on or before September

310, 2021.

2. Proofs of claim must conform substantially to Official Bankruptcy Form No. 410.

3. The proofs of claim must be filed by electronic submission on the ECF System on the

docket of the case for each applicable Debtor. In addition, copies of each completed proof of

claim must be delivered by e-mail to the following recipients at Simpson Thacher & Bartlett

LLP, counsel to the Debtors, no later than the Litigation Claims Bar Date:


2


Proofs of claim asserting HJDK Claims must also be delivered by e-mail to the following




4. Proofs of claim must (i) be signed; (ii) include supporting documentation (if

voluminous, attach a summary) or an explanation as to why documentation is not available;

(iii) be in the English language; and (iv) be denominated in United States currency. VRG shall be

permitted to attach a copy of the Judgment delivered on August 11, 2020 by the Court of Appeal

of the Cayman Islands (Cause number CICA 12 of 2019, on appeal from Cause number FSD 137

of 2016) as the supporting documentation for its claim based on such judgment and the

underlying litigation.

5. Proofs of claim must specify by name and case number the Debtor against which the

claim is filed; if the holder asserts a claim against more than one Debtor or has claims against

different Debtors, a separate proof of claim form must be filed with respect to each Debtor.

6. The Bar Date Notices in the forms attached hereto as Exhibit 1-A, Exhibit 1-B and

Exhibit 1-C are approved and shall be served by overnight mail at least twenty-eight (28) days

prior to the Litigation Claims Bar Date on: (i) the U.S. Trustee; (ii) VRG and their counsel;

(iii) VarigLog and their counsel; and (iv) HJDK and their counsel.

7. Pursuant to Bankruptcy Rule 3003(c)(2), if VRG, VarigLog, or HJDK shall fail to

comply with this Order by timely filing a proof of claim in appropriate form, each shall forever

barred, estopped and enjoined from: (a) asserting the VRG Claim, VarigLog Claim, and HJDK

3


Claim, as applicable, against the Debtors or their estates or property; or (b) voting on or

receiving any distribution under any plan in these Chapter 11 Cases in respect of such claims.

8. Notwithstanding anything contained in this Order to the contrary, the filing and

service of a proof of claim by VRG, VarigLog, or HJDK as required by this Order shall not

constitute a waiver of their respective: (a) rights, if any, to: (i) have any and all final orders in

any and all non-core matters entered only after de novo review by a United States District Judge;

(ii) trial by jury in any proceeding as to any and all matters so triable, whether or not such

matters are designated as legal or private rights, or in any case, controversy or proceeding related

hereto; (iii) seek dismissal, abstention or remand of any case, matter or proceeding subject to

dismissal, mandatory or discretionary abstention or remand; (iv) have the District Court

withdraw the reference in any case, matter or proceeding subject to mandatory or discretionary

withdrawal or (v) contest service of process; (b) objections, if any, to the jurisdiction of this

Court for any purpose, including the adjudication of claims filed in these Chapter 11 Cases; (c)

rights, remedies and claims that they may have against any other entities; or (d) any other rights,

claims, actions, defenses, setoffs or recoupments, if any, to which they may be entitled under any

agreements, or at law or in equity or under the United States Constitution. The Debtors’ rights,

claims, actions, defenses, arguments, setoffs or recoupments with respect to any of the foregoing

are expressly preserved.

89. The Debtors are authorized and empowered to take such steps and perform such

acts as may be necessary to implement and effectuate the terms of this Order.

910. The Court retains exclusive jurisdiction with respect to all matters arising from or

related to the implementation, interpretation, and enforcement of this Order.

4


5

Dated: ____________, 2021 UNITED STATES BANKRUPTCY JUDGENew York, New York


Exhibit 1-A

VRG Bar Date Notice


)

)



) Case No. 21-11255 (___DSJ)

)

In re:

Debtors.1

)


Chapter 11

)

NOTICE OF DEADLINE REQUIRING VRG TO FILE OF A PROOF OF CLAIMON OR BEFORE SEPTEMBER 310, 2021

The United States Bankruptcy Court for the Southern District of New York has entered

an Order2 establishing September 310, 2020 (the “Bar Date”) as the last date for GOL Linhas

Aéreas S.A. (formerly VRG Linhas Aéreas S.A.) (“VRG”) to file a proof of claim against any of

the Debtors listed herein (the “Debtors”) in respect of the litigation claims against the Debtors

listed on Annex A hereto (the “VRG Claims”). The Bar Date and the procedures set forth below

for filing proofs of claim apply to the VRG Claims.

1. VRG MUST FILE A PROOF OF CLAIM

VRG MUST file a proof of claim in accordance with this notice and the Bar Date Order

in respect of the VRG Claims to preserve such claims.

2. WHAT TO FILE


2 As used herein, “Bar Date Order” means the Order (I) Establishing A Deadline For the Filing Proofs of ClaimAsserting the Litigation Claims Against the Debtors And (II) Approving the Form and Manner of NoticeThereof, entered in the Debtors’ Chapter 11 Cases on [____], 2021 [Docket No. [_]]. Capitalized terms used butnot defined herein shall have the meanings ascribed to such terms in the Bar Date Order.


VRG’s filed proof of claim must conform substantially to Official Form No. 410. A copy

of Official Form No. 410 is enclosed as Annex B hereto. Additional proof of claim forms may be

obtained at the claims agent’s website at http://www.kccllc.net/mpii or at

www.uscourts.gov/forms/bankruptcy-forms.

All proof of claim forms must be signed by VRG or by an authorized agent of VRG. It

must be written in English and be denominated in United States currency. VRG should attach to

its completed proof of claim(s) any documents on which the VRG Claims are based (if

voluminous, attach a summary) or an explanation as to why the documents are not available.

VRG shall be permitted to attach a copy of the Judgment delivered on August 11, 2020 by the

Court of Appeal of the Cayman Islands (Cause number CICA 12 of 2019, on appeal from Cause

number FSD 137 of 2016) as the supporting documentation for its claim based on such judgment

and the underlying litigation.

VRG’s proof of claim form must not contain complete social security numbers or

taxpayer identification numbers (only the last four digits), a complete birth date (only the

year), the name of a minor (only the minor’s initials) or a financial account number (only

the last four digits of such financial account).

If VRG is asserting its VRG Claims against more than one Debtor, it must file a separate

proof of claim with respect to each such Debtor and identify on each proof of claim the specific

Debtor against which such VRG Claim is asserted and the case number of that Debtor’s

bankruptcy case. A list of the names of the Debtors and their case numbers is set forth on the

claims agent’s website.

3. WHEN AND WHERE TO FILE

VRG’s proofs of claim must be filed electronically on the Case Management / Electronic

2


Case Filing system for the United States Bankruptcy Court for the Southern District of New

York on the case docket for each applicable Debtor on or before September 310, 2021. In

addition, copies of each completed proof of claim must be delivered by e-mail to the following

recipients at Simpson Thacher & Bartlett LLP, counsel to the Debtors, no later than the



Proofs of claim may not be filed by facsimile, telecopy or electronic mail transmission.

4. CONSEQUENCES OF FAILURE TO FILE A PROOF OF CLAIM BY THE

BAR DATE

IF VRG FAILS TO TIMELY FILE A PROOF OF CLAIM IN THE APPROPRIATE

FORM IT SHALL NOT BE TREATED AS A CREDITOR WITH RESPECT TO THE VRG CLAIMS

FOR THE PURPOSES OF VOTING ON ANY PLAN FILED IN THESE CASES, OR

PARTICIPATING IN ANY DISTRIBUTION IN THE DEBTORS’ CASES ON ACCOUNT OF

SUCH VRG CLAIM AND VRG SHALL BE FOREVER BARRED, ESTOPPED AND

ENJOINED FROM ASSERTING THE VRG CLAIMS AGAINST THE DEBTORS OR THEIR

ESTATES OR PROPERTY.

VRG should consult an attorney regarding any matters not covered by this notice,

such as whether it should file a proof of claim.

3


4

Dated: ________, 2021New York, NY



-and-




Annex A

MatlinPatterson Global Opportunities Partners (Cayman) II L.P., MatlinPatterson GlobalOpportunities Partners II L.P. and MatlinPatterson Global Opportunities Partners II LLC(Appellants) v Gol Linhas Aéreas S.A. (formerly VRG Linhas Aéreas S.A.) (Respondent), in theJudicial Committee of the Privy Council JCPC 2020/0086, on appeal from the Cayman IslandsCourt of Appeal CICA Cause No: 12 of 2019.


Annex B

Proof of Claim – Official Form No. 410


Exhibit 1-B

VarigLog Bar Date Notice


)

)



) Case No. 21-11255 (___DSJ)

)

In re:

Debtors.1

)


Chapter 11

)

NOTICE OF DEADLINE REQUIRING VARIGLOG TO FILE OF A PROOF OFCLAIM ON OR BEFORE SEPTEMBER 310, 2021


an Order2 establishing September 310, 2020 (the “Bar Date”) as the last date for the Bankrupt

Estate of Varig Logistica S.A. (“VarigLog”) to file a proof of claim against any of the Debtors

listed herein (the “Debtors”) in respect of the litigation claims against the Debtors listed on

Annex A hereto (the “VarigLog Claims”). The Bar Date and the procedures set forth below for

filing proofs of claim apply to the VarigLog Claims.

1. VARIGLOG MUST FILE A PROOF OF CLAIM

VarigLog MUST file a proof of claim in accordance with this notice and the Bar Date

Order in respect of the VarigLog Claims to preserve such claims.

2. WHAT TO FILE




VarigLog’s filed proof of claim must conform substantially to Official Form No. 410. A

copy of Official Form No. 410 is enclosed as Annex B hereto. Additional proof of claim forms

may be obtained at the claims agent’s website at http://www.kccllc.net/mpii or at


All proof of claim forms must be signed by VarigLog or, by an authorized agent of

VarigLog. It must be written in English and be denominated in United States currency.

VarigLog should attach to its completed proof of claim(s) any documents on which the VarigLog

Claims are based (if voluminous, attach a summary) or an explanation as to why the documents

are not available.

VarigLog’s proof of claim form must not contain complete social security numbers

or taxpayer identification numbers (only the last four digits), a complete birth date (only

the year), the name of a minor (only the minor’s initials) or a financial account number

(only the last four digits of such financial account).

If VarigLog is asserting its VarigLog Claims against more than one Debtor, it must file a

separate proof of claim with respect to each such Debtor and identify on each proof of claim the

specific Debtor against which such VarigLog Claim is asserted and the case number of that

Debtor’s bankruptcy case. A list of the names of the Debtors and their case numbers is set forth

on the claims agent’s website.


VarigLog’s proofs of claim must be filed electronically on the Case Management /

Electronic Case Filing system for the United States Bankruptcy Court for the Southern District of

New York on the case docket for each applicable Debtor on or before September 310, 2021. In


2





Proofs of claim may not be filed by facsimile, telecopy or electronic mail transmission.


BAR DATE

IF VARIGLOG FAILS TO TIMELY FILE A PROOF OF CLAIM IN THE

APPROPRIATE FORM IT SHALL NOT BE TREATED AS A CREDITOR WITH RESPECT TO

THE VARIGLOGCLAIMS FOR THE PURPOSES OF VOTING ON ANY PLAN FILED IN THESE

CASES, OR PARTICIPATING IN ANY DISTRIBUTION IN THE DEBTORS’ CASES ON

ACCOUNT OF SUCH VARIGLOG CLAIM AND VARIGLOG SHALL BE FOREVER

BARRED, ESTOPPED AND ENJOINED FROM ASSERTING THE VARIGLOG CLAIMS

AGAINST THE DEBTORS OR THEIR ESTATES OR PROPERTY.

VarigLog should consult an attorney regarding any matters not covered by this

notice, such as whether it should file a proof of claim.

3


4




-and-



-and-




Annex A

The Bankrupt Estate of Varig Logística S/A, represented by its Trustee ADJUD AdministradorseJudiciais Ltda EPP, by its legal representative Mr. Vânio Cesar Pickler Aguiar, against (1) VoloLogistics LLC, (2) MatlinPatterson Global Opportunities Partners II L.P., (3) MatlinPattersonGlobal Opportunities Partners (Cayman) II LP, (4) MatlinPatterson Global Partners II LLC, (5)MatlinPatterson Global Advisers LLC and (6) MatlinPatterson PE Holdings LLC (previouslynamed as MatlinPatterson Asset Management LLC), before the 1st Bankruptcy and JudicialReorganization Court of the Judicial District of São Paulo, with case number 1038411-91.2020.8.26.0100.

Volo Logistics LLC, MatlinPatterson Global Opportunities Partners II L.P., MatlinPattersonGlobal Opportunities Partners (Cayman) II L.P., MatlinPatterson Global Partners II LLC,MatlinPatterson Global Advisers LLC, MatlinPatterson PE Holdings LLC (formerly known asMatlinPatterson Asset Management LLC) (Plaintiffs) v Varig Logistica S.A. (Defendant) Adv.Pro. No. 20-01243-BKC-RAM-A, in In re Varig Logistica S.A. (Debtor in a ForeignProceeding), Chapter 15, Case No. 09-15717-RAM, United States Bankruptcy Court, SouthernDistrict of Florida, Miami Division.


Annex B



Exhibit 1-C

HJDK Bar Date Notice


)

)



) Case No. 21-11255 (___DSJ)

)

In re:

Debtors.1

)


Chapter 11

)

NOTICE OF DEADLINE REQUIRING HJDK TO FILE OF A PROOF OFCLAIM ON OR BEFORE SEPTEMBER 310, 2021


an Order2 establishing September 310, 2020 (the “Bar Date”) as the last date for HJDK

Aerospacial S/A (“HJDK”) to file a proof of claim against any of the Debtors listed herein (the

“Debtors”) in respect of the litigation claims against the Debtors listed on Annex A hereto (the

“HJDK Claims”). The Bar Date and the procedures set forth below for filing proofs of claim

apply to the HJDK Claims.

1. HJDK MUST FILE A PROOF OF CLAIM

HJDK MUST file a proof of claim in accordance with this notice and the Bar Date Order

in respect of the HJDK Claims to preserve such claims.

2. WHAT TO FILE




HJDK’s filed proof of claim must conform substantially to Official Form No. 410. A

copy of Official Form No. 410 is enclosed as Annex B hereto. Additional proof of claim forms

may be obtained at the claims agent’s website at http://www.kccllc.net/mpii or at


All proof of claim forms must be signed by HJDK or, by an authorized agent of HJDK. It

must be written in English and be denominated in United States currency. HJDK should attach

to its completed proof of claim(s) any documents on which the HJDK Claims are based (if

voluminous, attach a summary) or an explanation as to why the documents are not available.

HJDK’s proof of claim form must not contain complete social security numbers or

taxpayer identification numbers (only the last four digits), a complete birth date (only the

year), the name of a minor (only the minor’s initials) or a financial account number (only

the last four digits of such financial account).

If HJDK is asserting its HJDK Claim against more than one Debtor, it must file a separate

proof of claim with respect to each such Debtor and identify on each proof of claim the specific

Debtor against which such HJDK claim is asserted and the case number of that Debtor’s

bankruptcy case. A list of the names of the Debtors and their case numbers is set forth on the

claims agent’s website.


HJDK’s proofs of claim must be filed electronically on the Case Management /

Electronic Case Filing system for the United States Bankruptcy Court for the Southern District of

New York on the case docket for each applicable Debtor on or before September 310, 2021. In



2




Copies of each completed proof of claim must also be delivered by e-mail to the following




Proofs of claim may not be delivered by facsimile, telecopy or electronic mail

transmission.


BAR DATE

IF HJDK FAILS TO TIMELY FILE A PROOF OF CLAIM IN THE APPROPRIATE

FORM IT SHALL NOT BE TREATED AS A CREDITOR WITH RESPECT TO THE HJDK CLAIM

FOR THE PURPOSES OF VOTING ON ANY PLAN FILED IN THESE CASES, OR

PARTICIPATING IN ANY DISTRIBUTION IN THE DEBTORS’ CASES ON ACCOUNT OF

SUCH HJDK CLAIM AND HJDK SHALL BE FOREVER BARRED, ESTOPPED AND

ENJOINED FROM ASSERTING THE HJDK CLAIMS AGAINST THE DEBTORS OR

THEIR ESTATES OR PROPERTY.

HJDK should consult an attorney regarding any matters not covered by this notice,

such as whether it should file a proof of claim.

3


4




-and-



-and-




Annex A

HJDK Aeroespacial S.A., represented by the law firm Licrastro Focaccia Advogados (Mr.Rogerio Licastro Torres de Mello) against (1) MatlinPatterson Global Opportunities PartnersL.P., (2) MatlinPatterson Global Advisers LLC, (3) MatlinPatterson Global OpportunitiesPartners II L.P. and (4) MatlinPatterson Global Partners (Cayman) II LP before the 2nd CivilCourt of the Judicial District of São Paulo, with case number 0139465-35.2011.8.26.0100.


Annex B



26Delete

Style name: STB Option 1

20Move From 0Move To

Intelligent Table Comparison: Active

0Table Insert 0Table Delete

Original filename: C:\Users\17073\Documents\MatlinPatterson\MP - Bar DateMotion Filing\MP - Motion to Set Limited Bar Date (Original Filing Version -Proposed Order).DOCX

0Table moves to 0Table moves from

Modified filename: C:\Users\17073\Documents\MatlinPatterson\MP - Bar DateMotion Filing\MP - Amended Motion to Set Limited Bar Date (Revised ProposedOrder 07.22.21).DOCX

0Embedded Graphics (Visio, ChemDraw, Images etc.) 0

Summary report:Litera® Change-Pro for Word 10.8.2.10 Document comparison done on

7/22/2021 4:28:19 PM

Embedded Excel

Changes:

0Format changes 0Total Changes:

Add

46
